Judge discourse moves that enact and endanger procedural justice

Abstract

In this article we identify discourse moves in small claims court that have the potential to affect procedural justice – the sense that a litigant has been treated fairly and respectfully. We focus on what judges do as they address three communicative challenges that are part of small claims court judging: (1) handling the potential for appeal, (2) keeping trials short while treating litigants fairly and (3) managing the paradox of informal justice. After providing background on procedural justice and how it links to facework, and describing small claims court procedures and research, we characterize the trial data and our discourse approach. Then we explicate the discourse moves judges employed to address each of the communication challenges. This article concludes by suggesting the likely consequences of judges’ moves for litigants’ perceptions of procedural justice.

Keywords

Action-implicative discourse analysis facework judge discourse procedural justice small claims court

Introduction

In courtrooms an especially important stance that is inferred by litigants concerns whether a judge is dealing with them in a fair, respectful manner. Successfully displaying this stance is a good part of what is meant by ‘procedural justice’. The idea of procedural justice, initially developed by Thibaut and Walker (1975) and extended significantly by Tyler (1988, 2007–2008), has multiple parts; these include giving people an opportunity to tell their story, judges showing neutrality in how they explain and apply rules, and a sense that the judge is listening and being respectful. At its heart, procedural justice involves managing people’s disputes so they see the decisions of the court as legitimate. Although procedural justice is assumed to be important in citizens’ assessments of the justice system, how it is communicatively enacted (or endangered) is much less clear. This is because evaluations of being ‘respected’ or ‘treated fairly’ are complex, situated judgments dependent on many small discursive moves.

Discourse moves have been investigated in many justice settings, with the most frequently studied site being the criminal trial involving a major crime such as murder (e.g. Cotterill, 2002; LeBaron and Streeck, 1997; Nicholson, 2010) or sexual assault (e.g. Ehrlich, 1998; Harris, 2005; Matoesian, 2003). Distinct activities such as opening statements (e.g. Chaemsaithong, 2014; Lilley, 1999), the testifying of experts (Chaemsaithong, 2012), closing arguments (Hobbs, 2003; Rosulek, 2010) and jury deliberation (Meyers et al., 2010; Wolf, 2010) have also been studied, as have judges’ taking of guilty pleas (Philips, 1990, 1998), the plea bargaining process (Lee, 2005; Maynard, 1984) and the interrogations that police carry out with suspects (Maynard, 2017; Oxburgh et al., 2010; Stokoe and Edwards, 2007, 2008). While criminal trials have garnered the most attention, other legal genres have been analyzed: for example, oral argument in appeals cases (e.g. Tracy, 2009, 2016), voir dire (Shuy, 1995) and the written opinions of judges in civil judgments (Han, 2011). Relatively unstudied are trials in small claims court, which after traffic court is one of the most common places for ordinary citizens to experience the law.

Our purpose in this article is to describe discourse moves judges selected as they addressed three problems built into the practice of small claims judging and to suggest the likely impact of choices on procedural justice. The article begins by explaining procedural justice in more detail and arguing how it is linked to face management. Next, we give background on small claims court practice and studies of its discourse and overview the trial data and the discourse analytic approach. Then we turn to our analysis, in which we describe three tensions built into the practice of small claims judging and the different discourse moves judges employed to address them. In the conclusion, we draw out implications for procedural justice in small claims courts.

Procedural justice and its link to face management

Procedural justice is an idea that has been quite influential in different settings, including for-profit companies (Ambrose, 2002; Cohen-Charash and Specter, 2001) and universities (Graso et al., 2014), policing (Rahr and Rice, 2015; Schulhofer et al., 2011) and the courts (Rottman and Tyler, 2014), as well as in assessing an entire society’s political processes and decision making (Tyler, 2009). Although various authors divide justice into two, three or four kinds (e.g. Colquitt et al., 2001, have 4; Skarlicki and Folger, 1997, have 3), the most common distinction is twofold and is between distributional and procedural justice. Distributional justice concerns whether a result or decision is perceived as fair. Procedural justice refers to the perceived character of the decision-making process itself (Tyler, 2000). What will count as a fair process, rather obviously, will depend on whether the decision concerns workplace allocation of raises and promotions, the police conduct with a driver during a traffic stop, or a judge’s management of litigants in a courtroom. In each of these activities there are different tasks to be done or avoided if the process is to be regarded as fair.

Tyler (2000) identified four features that contribute to the accomplishment of procedural justice across settings. First is the opportunity for participation and voice. Second is a sense that the forum is neutral. Third is the trustworthiness of the authorities, and fourth is the degree to which parties are treated with respect and dignity. Much of the research on procedural justice uses surveys to ask for people’s overall assessments of an institution or category of persons. This information about patterns of perceptions is valuable, but it does not attend to the interactional underpinnings and how general assessments come into being. People’s assessments that procedural justice occurred on any specific occasion will be shaped by what happened to them in that communication process. This is especially true for events such as small claims hearings that occur only once or a few times for most people.

The fact that a person is respected and treated with dignity is a good part of what Goffman (1955) includes in his notion of face. In general, people desire to be seen as competent and likeable and to be respected and not imposed upon (Brown and Levinson, 1987; Lim and Bowers, 1991); this is the face that people seek to have upheld in most situations. Face is, however, only partially under a speaker’s control. A person’s actual face is always dependent on how others support or challenge that person’s desired face wants. Brown and Levinson identified politeness strategies that people in ordinary moments use to support face. Others (Culpeper, 2011; Tracy and Tracy, 1998) have described the ways speakers can threaten another’s face or deliberately insult them, that is, attack their face. How judges handle the routine tasks of enacting the law will affect whether litigants feel that their face has been respected and, we argue, whether procedural justice has occurred.

Background on small claims court and its discourse

Small claims courts are designed, as the name suggests, to handle disputes between parties about relatively small matters, usually money but also the issue of who is entitled to possess a property (e.g. tenant/landlord). In 2015 in the United States, the upper dollar limit in small claims courts varied from a low of US$2500 to a high of US$15,000, with most state courts being between US$5000 and US$7500. Small claims courts came into existence in the United States in the early years of the 20th century, their purpose being to ‘provide citizens from all walks of life with quick, uncomplicated, inexpensive, and just resolution of smaller civil disputes’ (Ruhnka and Weller, 1978: xi). Small claims courts were part of a broader movement that sought to increase access to and participation in the justice system for ordinary people by providing more informal, less bureaucratic procedures. Small claims court is a kind of ‘informal’ justice. These courts were touted as a great solution to the problems of the formal justice system; at their inception, they were expected to be ‘a panacea for aggrieved customers, abused tenants, and “mom and pop” merchants’ (Conley and O’Barr, 1990: 25).

One of the consequences of small claims courts being relatively informal is that what happens varies widely from court to court and judge to judge. As Ruhnka and Weller (1978) put it,

Because the entire fabric of trial procedures, including provisions for dealing with unprepared or inexperienced litigants, is left up to the judge, the individual plays a key role in achieving even-handed and just results, particularly where litigants of widely different backgrounds or abilities are involved. (p. 27)

Judges in small claims courts, we would add, face challenges in enacting procedural justice that are more demanding than those for judges in other kinds of civil and criminal courts. The name of the court, ‘small claims’, suggests that the matters to be dealt with should be relatively trivial, easy disputes, but this is not how judges experience these courts. Although dollar amounts are small, the legal issue is often complex. In Ruhnka and Weller’s (1978) study, which interviewed judges in Washington, DC and New York, judges reported finding small claims cases ‘harder’ and more of a strain than criminal or full-blown civil cases. Unlike trials in other settings where judges speak primarily to attorneys, small claims trials require judges to deal directly with ordinary litigants.

The kinds of suits small claims judges routinely hear include one party failing to pay rent or return a security deposit, perceived failure to perform a service adequately or pay for the service as promised, and perceived failure to adequately compensate for a damage of some kind. Quite often these disputes are suffused with negative feelings, as out-of-court attempts to settle have failed. To start a small claims suit, citizens go to the court, pay a small fee and fill out a form indicating the parties – a single person, a couple or a company – they want to sue. The complaint form also spells out the amount that is being asked and the reason. Before a trial is scheduled, the complaint-maker, now officially the plaintiff, needs to show evidence that the defendants in the suit were properly served. This ensures that the parties know the date they are required to appear in court. If a defendant wants to contest the plaintiff’s claim, the party needs to pay a small fee and file either an ‘answer’ explaining why s/he should not be held accountable or a ‘counterclaim’, initiating a competing suit against the plaintiff. Most of the time, and in some states all of the time, the parties speak for themselves and appear without an attorney.

The landmark study of small claims court interaction was Conley and O’Barr’s (1990) observational study of more than 450 cases plus interviews with a small set of disputants at several points in time. They found that litigants’ communication tended to adopt one of two styles, what they labeled rule based and relational. The rule-based style narrated the dispute in terms of rules of the court regarding focal issues and what could count as evidence. Litigants using the relational style, in contrast, sought to pull the judge into their moral world of responsibilities and duties. The rule-based style tended to produce better outcomes at trial, and it tended to be used by those categories of people who were advantaged in society (men vs women, whites vs people of color, and more vs less educated). In a recent study of small claims courts in Israel, Yovel (2012) found disputants to be more rhetorically flexible than Conley and O’Barr had suggested. He observed some number of initially relational-narrating litigants switch to a more rule-based orientation when the relational one was failing.

Conley and O’Barr (1990) gave some attention to judges’ styles, but they did not attend to discourse particulars. Other studies of small claims judges have focused on discourse particulars, but they are of Judge Judy and People’s Court (Kohm, 2006; Van der Houwen, 2009, 2015), television shows deserving study but not necessarily accurate models of what happens in actual courtrooms. A final reason suggesting the need for a close look at small claims court judges’ talk is that in the 25+ years since Conley and O’Barr’s research was conducted, small claims courts have changed in significant ways. Changes include (1) the average trial time being longer; (2) mediation being a strongly encouraged if not mandated step in many courts; (3) judges and magistrates in small cities and rural areas also being attorneys rather than primarily those in large cities; and (4) a growth in court written and video materials geared to preparing disputants, albeit particularly plaintiffs, for how to build their case, including what counts as evidence.

The job of small claims judges is to elicit the facts of the dispute, apply the law and announce a decision. In a first study with these trial materials, Tracy and Caron (2017) described two judge style differences. The first difference concerned how a judge framed the small claims setting. Was the central definition of the situation an inquisitorial one in which the judge largely guides what happens by asking questions, or did the judge frame the situation as a mini-trial, an adversarial frame, where each litigant gets to tell their story and give whatever information that litigant sees as important? A second style difference, which interacted with the first one in interesting ways, concerned whether the judge regularly engaged in or avoided moves of disrespect. It is this second style difference we explore here. That is, we ask ‘In what ways do judges’ discursive choices in managing small claims threaten or preserve the face of litigants?’.

Trial data and the discourse analytic approach

Our corpus of small claims trials includes 55 cases from several states and judges. Half of the cases come from two courts in Colorado and the other half from courts in New Jersey, Washington and Michigan. Not all states tape their small claims trials, but a number do. When a state tapes its small claims trials, these tapes become public records and may be requested. States vary considerably in the ease with which a trial tape may be requested. There are 12 judges in our trial data: 7 from Colorado,¹ 3 from Washington and 1 each from New Jersey and Michigan. Each of these judges heard from 2 to 12 full cases; the shortest trial was 12 minutes and the longest was 176 minutes, with the average length being 45 minutes. The data are digital audio files, except for Michigan in which the judge posted videos of his trials online.

Trials were transcribed verbatim; all words, repetitions, ‘uhs and ums’ and word cutoffs were included (Tracy, 2005). The transcripts captured accurately what was said, and there was no cleaning up of errors for high status speakers as is common in court-provided trial transcripts (Walker, 1986). Vocal intonation and stress were not included, and punctuation was added to aid readability. This intermediate level of transcript detail was selected because our analytic focus was on language formulations and argument moves that occurred in and across extended stretches of talk.

Our discourse approach is action-implicative discourse analysis (AIDA). Starting with an identifiable communicative practice, AIDA seeks to construct the problems or dilemmas of a practice, the discursive techniques that make visible and seek to manage the problems and, eventually, although not necessarily in a single study, the situated ideals of good conduct for that practice (Tracy, 1995, 2005). AIDA is the methodological arm of grounded practical theory (Craig and Tracy, 1995, 2014), an approach to research that aims to contribute to the cultivation of institutionally important communication practices by carefully studying instances of people participating in the focal practice. As participants are positioned in a practice – for example, judges face different problems than do plaintiffs or defendants – AIDA typically focuses on the practice from one party’s point of view, while seeking to respect the aims of the other parties. In this study our focus is describing the discourse strategies employed by judges to manage three problems central to small claims court judging.²

Three problems small claims judges must address

Small claims court inhabits a particular space in the larger judicial scene. It involves civil trials that like other trials can be appealed in a higher court.³ Determining how best to communicatively address the potential for appeal is a first challenge that judges face. To be sure, not all states allow appeal of small claims decisions, but most do. In a study of 12 urban courts in the United States, Goerdt (1992) found 10 of them allowed appeals in small claims.

Appeal of a judge’s decision is a relatively straightforward indicator that the party believes he or she was not treated fairly. That sense of unfairness might be related to the decision – ‘any judge that does not see the rightness of my position is unfair’ – or it could relate to how the judge dealt with the party. The importance of litigants’ communicative treatment was noted in an interview with a state supreme court judge:

Excerpt 1

When I was a trial lawyer, if you had a judge who may not have been the brightest crayon in the box, but treated everybody with respect, explained his or her rulings, um, tried to do the best job they can, and was courteous to everybody, when your client would lose, and I n- and I thought the judge was dead-wrong, my clients would normally say, well, I don’t want to appeal it, I think I got my fair shake. On the other hand, when you got a judge who was very, very smart, but very curt with people, didn’t treat them properly, and didn’t really explain what he was doing, but he was – he or she was right every time, there was nothing appealable – the client would invariably say, I want to appeal this, because I wasn’t treated fair. (Interview from State Supreme Court Judge, Tracy, 2016, unpublished data)

Compared to other criminal and civil courts, appeals in small claims cases are relatively rare (Goerdt, 1992). In a law review authored by a state supreme court justice overviewing what had happened in his state’s courts, David (2013: 874, fn 11) argues that indicators of state court success include not only the low likelihood that an appeal would lead to a reversal of a trial court’s decision, but a low rate of appeal itself. This judicial leader’s sense that having few appeals is a mark of good judging, we suggest is a sentiment held widely across types of courts. Being a good judge involves having relatively few appeals of one’s decisions, recognizing, of course, that number of appeals varies by court type. How to manage the potential for appeal, then, is a first problem small claims judges must give attention.

A second problem specific to small claims court judges is how to manage the tension between two criteria important in these courts: speed and litigant satisfaction. Judges need to keep trials short while treating parties fairly, that is, doing procedural justice. ‘Everyone who steps into a courtroom expects his or her voice to be fairly heard, his or her arguments taken seriously, and his or her dispute aired without scorn or slight’, comments Judge David (2013: 872).

It is also true that judges handling cases quickly is valued. Judicial time is expensive, and small claims judges are expected to handle lots of cases to keep the average cost of a trial low. Government reports (i.e. Goerdt, 1992) comparing state courts’ effectiveness include a measure of judge-hours per trial. Thus, a judge whose average trial time is markedly higher than average is not doing a good job. Speed and litigant satisfaction, we will show, are partly in tension.

A third challenge small claims court judges must manage is how to keep the courtroom a scene of informal justice, friendly to ordinary, nonlegally trained people while enacting it as a courtroom setting bound by legal rules. The idea of informal justice in many ways is paradoxical. ‘Justice’ in its essence is rule bound and rule governed; all parties are held to the same expectations and are treated similarly based on whether they meet or violate those expectations. Informality, though, is rule-light and involves adaption to the needs of people and the situation.

Face-implicative discourse moves judges employ

Problem 1: Managing appeal potential

There were three ways judges dealt with the possibility of appeal. A first way, exercised consistently by Judge ST, was to announce at the start of the trial that litigants could appeal if they did not like the decision:

Excerpt 2

Alright so the plaintiffs get to present their case first without interruption and I’ll give Ms. L. [the defendant] the same opportunity. And, and I’ll try to do the hard work of figuring out, applying the facts to the law and see if we can come up with a conclusion. And if either both of you disagree you may file an appeal, post your costs, write your legal briefs, and get your legal education. (Case 21, Judge, Colorado)

Not only did Judge ST tell litigants in the opening moments that they could appeal, but he repeated this fact multiple times. In a dispute between college housemates where a woman had broken the lease and moved out, Judge ST drew attention to appealing 12 times in a 75-minute trial. In foregrounding the right to appeal, alongside the difficulty of decision making, this judge attended to the face wants of both parties to be seen as making reasonable arguments. Deciding is a tough call. At the same time, mentioning the right to appeal repeatedly could problematize a judge’s own competence, suggesting that appeals of his/her decision were regular events.

A second strategy described in Tracy and Caron (2017) was to provide an extraordinarily lengthy explanation of the whole court process, with frequent understanding checks directed to both parties accompanied by a long justification of the announced decision. Being highly elaborate in an explanation of court steps or at the trial’s end in announcing the decision is an indirect way to call attention to the embeddedness of small claims court in the larger judicial process. Unusually long justifications – above and beyond what the litigants themselves need – call attention to what a judge is doing as ‘speaking for the record’. This strategy attends to the face concerns of litigants through the care in which everything they noted is accounted for and assessed. However, it also makes visible a judge who seems to be addressing someone other than the focal parties.

By far the most common way judges dealt with the possibility of appeal was to not introduce it unless a litigant asked about it explicitly or was protesting a judge’s decision. For instance, consider the case in which a plaintiff had taken the transmission out of his car and taken it to a repair shop to get an estimate of the cost of a repair. The transmission shop had subcontracted the estimate to another business. When the cost estimate came back, several lug nuts were missing from the transmission. The plaintiff did not want the repair because of the estimated cost, but he sued the shop for US$800 for the damage to his transmission and for the time that it took them to return it to him. The defending transmission shop owner brought a mechanic witness and explained what the shop did, as well as their process of subcontracting estimates when the transmission had to be taken apart to figure out the trouble. Following the extended testimony of the subcontracting transmission estimator, the plaintiff protested the practice of subcontracting and then the judge made his ruling:

Excerpt 3

1 P: [183 words explaining] This is- don’t make no sense.

2 J-AR: Okay.

3 P: You know that.

4 J-AR: Okay, well.

5 P: Look at- I’m a window cleaner your honor. I’m going to call another window

6 cleaner-

7 J-AR: I understand.

8 P: to do your house because I’m gonna- Well, I’m not sure how much work is

9 involved with it. I mean, come on.

10 J-AR: Okay. Okay. All right. What- what the court does find, legally- I’m- in part I

11 guess the court estimate is- because that’s the- the court relies on these things the

12 evidence I have in the hearing. And apparent- well at least these plugs that uh

13 obviously were missing. Um and I- I’m relying on Mr. B’s testimony cause that’s

14 what I have. That at least there was some damage, that apparently was down in

15 [city name] did in- result to the transmission. I- it is very hard to figure out the

16 proper measure of damages in due of all this. And I- and the court doesn’t believe

17 all the cost of whatever the new transmission all that are proffered. The court

18 doesn’t- I just- finds that it’s almost like a nominal damage claim at best. Uh 200

19 dollars plus court costs, and with- Okay. And the court cost or whatever the filing

20 fee is and the service fee. Anybody doesn’t like the court’s decision, it can be ap-

21 appealed. Over. Okay? Thank you. (Case 12, P: Plaintiff, J-AR: Judge, Colorado)

J-AR’s announcement of his decision evidences ongoing signs of discomfort. Multiple times he restarts utterances and goes in different directions without completing his thought. He also describes the task he has as ‘very hard’, and he goes back and forth between speaking for himself (I) and reverting to the more formal, distant formulation of ‘the court’, the negative politeness strategy of impersonalization (Brown and Levinson, 1987) that is used for delivering bad news. The judge ends his announcement in lines 20 and 21 by highlighting the right to appeal. In this case, bringing up the right to appeal seems designed to identify a next legal option for the unhappy party as well as to minimize the immediate expression of dissatisfaction. Drawing attention to the right to appeal in such moments usually ended litigant protest but not always.

Consider the case where a plaintiff had sued an acquaintance who had been paid US$10 an hour to help her move apartments (~US$100 total). The acquaintance, now the defendant, had presumably left a mess. The plaintiff had shown pictures of how the moved boxes were left to evidence her claim; the defendant countered that the pictures had no dates and must have come from much later. Following the judge’s announcement that the court needed to move to the next case, the following exchange took place:

Excerpt 4

1 D: I don’t- I don’t see how these pictures show proof your honor because I don’t

2 know the date these were taken on.

3 J-HA: We’ve already asked that question and had it answered sir.

4 D: No we- There’s no date on the picture there.

5 J-HA: She made- she gave testimony um that it was within that week. Sir

6 you don’t get to

7 D: That’s ok I will take it to the Supreme Court because I don’t believe

8 J-HA: Sir, well actually sir, first you have to go um to the Superior Court before you

9 ever get to the Supreme Court. That’s a little bit higher.

10 D: I’m sorry

11 J-HA: That’s okay. Alright there’s the recusal for the other cases.

12 D: And the threatening letter.

13 J-HA: We’re done.

14 D: I know we’re done.

15 J-HA: Well then let’s try to keep our remarks to ourselves.

16 D: No I won’t, because this is the United States an I have freedom of speech. (Case 50, D: Defendant, J-HA: Judge, Washington)

Excerpt 4 points to a courtroom exchange that has gone off the rails. In the next section we analyze why that may have happened. Here we would highlight that when the defendant announces his intention to appeal (line 7), rather than letting pass his incorrect identification of which court that appeal would go to, J-HA corrects his assertion of where he will appeal with details about the court hierarchy, a remark likely to be heard as condescending. This correction, in turn, contributes to the exchange further escalating until the judge is threatening the defendant with contempt of court. If in line 8 J-HA had supported the defendant’s right to appeal, saying something like ‘Sir it is your right to appeal. You can do so by directing an appeal to the Superior Court’, it is possible that the face-attacking sequence in which the judge tries to silence the defendant and the defendant refuses to acknowledge the judge’s power may have abated.

The right to appeal is a legitimate part of the judicial process, although courts do not want that right to be used too frequently. Managing news about the right of appeal so it is informative but not misleading, and neither undercuts a judge’s authority nor comes across as an indirect threat to a litigant, is delicate conversational work.

Problem 2: Attending to trial speed and fair treatment of litigants

As noted earlier, small claims cases take little time. Goerdt’s (1992) analysis of four city’s courts found the average trial across a large set of judges to be 28 minutes. Importantly though, hearing length varies considerably by judge. Judge AL’s trials, for instance, were more than four times longer than Judge CH’s. Judge AL averaged 81 minutes per trial, whereas Judge CH averaged 20 minutes.⁴ Adversarial and inquisitorial judge styles are a continuum. In our data, Judge AL anchored the adversarial end and Judge CH the inquisitorial side.

Judges who favored the adversarial frame tended to talk explicitly about time, whereas inquisitorial-style judges, who were faster, did not. For instance, Judge AL said ‘I am going to permit each side 20 minutes to present their entire case’, and Judge SI, a relatively adversarial style judge, said ‘the parties are advised that small claims cases are set for a 45-minute period and each of you will be allowed half the time to present your case’. Typically, judges’ announcements of time limits being reached occurred with minimal face threat. At the same time, this way of managing time could lead to information important to the dispute not coming out. In addition, these trial-like hearings typically took more time than their inquisitorially run brethren.

Judges who employed the inquisitorial style, in contrast, regulated time by restricting litigants’ talk to answering specific questions that gave limited expository room. Even in the beginning where inquisitorial-style judges used relatively open-ended questions, these ‘open’ questions sought to direct and constrain the information litigants were to provide. Judge AR, for instance, in opening questions to plaintiffs said ‘Go ahead and explain briefly what- what’s- why- what’s the basis of your claim and why you are claiming it?’ and ‘I have read your attached complaint and uh the attached um claim, so-called. Um can you tell me why you think you should prevail?’. Both openings attempt to minimize the kind of relational backstory that litigants so frequently want to tell. Highly directed questioning led to shorter hearings, but judges’ questions were a key source of face threat for litigants and hence, we argue, a threat to procedural justice.

Information-eliciting strategies used by judges during questioning could contribute a sense that a judge favored one party. A first move that accomplished (dis)favoring was the use of extreme case formulations. One of the ways ordinary communicators indicate something unreasonable (or the reverse) is by using this device. First identified in the 1970s by Sacks (1992) in his lectures and then more fully explicated by Pomerantz (1986), extreme case formulations cut across grammatical categories including adjectives, adverbs, nouns and distinctive phrases. In Pomerantz’s initial explication, she showed that litigants in small claims court commonly used extreme case formulations as they narrated their stories explaining how they had been wronged. This strategy is rarely used by appellate judges in oral argument (Tracy, 2016; Tracy and Parks, 2012); appellate judges did discursive work to avoid showing favor to a side. The avoidance of extreme case formulations, though, is not a feature of small claims court judges. They use them regularly in their questioning. Consider one example.

Mr A was suing Walmart for US$275. He had brought his watch into the store to have the battery replaced. After he left the store, he realized the watch was not running so he took it back. In trying to get the watch open, which the Walmart staff person did not succeed in doing, the watch band was broken. Following a series of questions by the judge exploring the cost of the battery replacement (US$3.75) and what the Walmart staff had done and said on Mr A’s different visits (Walmart would only pay for the cost of the band) the following exchange occurs:

Excerpt 5

1 J: Well you’re suing for $275 right?

2 Mr. A: Yes sir.

3 J: How’d you come up with $275?

4 Mr. A: That’s what I paid for the watch.

5 J: So you want a whole new watch?

6 Mr. A: Who?

7 J: You want a whole new watch? (Case 33, Mr. A: Plaintiff, J: Judge, Michigan)

In turn 5, the judge formulates the upshot of Mr A’s suit as wanting ‘a whole new watch?’⁵ In light of the information that had come out earlier in the trial (i.e. the small amount paid for the battery) and what could be inferred (the cost of a watch band), the judge’s use of an extreme case formulation in this question conveys the judge’s assessment that the requested amount was unreasonable, a move that is a face threat. How significant the threat is, of course, will depend on the other face-threatening moves with which it co-occurs.

A second aspect of questioning that conveys favoring concerns of one party over the other relates to how the judge begins questioning the defendant. Across small claims proceedings, whether judges use an adversarial (trial) or inquisitorial format, plaintiffs are given the first word and through this sequential positioning receive an advantage over the defendant. As has been recognized in mediation (Garcia, 2010), the party who goes first in narrating a dispute gets to formulate what the dispute is, whereas the party going second is positioned as defending against the first party’s framing. This inequity between parties is built into court proceedings and reinforced by the names assigned to the parties – plaintiff and defendant. At the same time, this inequity is counter-balanced by the second one which gives the advantage in the other direction. Plaintiffs have the burden of proof. In civil suits, plaintiffs must show by a preponderance of the evidence that their claim about what happened is more reasonable than what defendants say. If both parties seem equally reasonable, the plaintiff loses the case.

A practice observed in some judges using the inquisitorial style was to begin the hearing by reading the complaint as the plaintiff had formulated it in the documentation. For instance, Judge HA used a plaintiff’s detailed, hostile statement to formulate her first question to the defendant. The case involved the woman who was suing a man who had helped her move. This is the same case seen in excerpt 4. With the official complaint, the plaintiff attached a 449-word letter directed to the defendant complaining about the quality of work and the consequences for the plaintiff. The letter, which the judge read in its entirety, noted that

Excerpt 6

Services were way below sub-par. The apartment and my belongings were trashed against instructions and common sense decency …. I then spent six hours my first night clearing a path in the semi-darkness reading labels and moving boxes where they were supposed to be. Exhausted and realizing that I hardly made it down the pile I gave up. Spending most of my first week in a deep stupor over what you have done I continued to be overwhelmed about what you have done …. You moved three boxes with nothing in them. Nothing. Who paid you to move cardboard and air. Even if it is only a few miles down the road. What makes you think any of this was normal, responsible, mannerable livable, or logical? (Case 51, Judge, Washington)

Following several questions from the judge clarifying comments about cleaning services that the plaintiff had bought to deal with the problems, the judge summarized the gist of the plaintiff’s statement and posed her first question to the defendant. Her question, by virtue of its absence of neutrality markers, treated the letter as offering a reasonable description of the dispute. She said, ‘Um what do you have to say in defense of the claim?’.

In their study of what made for particularly aggressive questioning of presidents in press conferences, Clayman and Heritage (2002) found that use of extended prefaces before getting to the actual question made a question more adversarial. ‘The claim’ that judge HA was asking the defendant to speak to was the entire plaintiff’s text, which had been given legitimacy by her voicing the plaintiff’s words without marking them as positioned. Judge HA’s question did not include discourse moves that recognize that the plaintiff’s letter is the plaintiff’s version of events. If rather than asking for his defense the judge had said ‘Mr. D please give us your account of what happened’, the effect of the judge voicing the plaintiff’s claim would have been mitigated. Most judges, in fact, did discursive work in questioning both parties to show their awareness that parties were verbally presenting versions of an event. They did this by referring to ‘sides’, ‘stories’ and ‘accounts’ as they questioned each party.

A third aspect of questioning that may enact face threat is using an evaluative question format, most often in conjunction with criticism-implying lexical choices. Evaluation in ordinary talk is regularly accomplished in questions, and the court’s commitment to informality means that judges question using everyday ways of probing assertions. Questioning devices are not inherently face attacking, but in this context they frequently problematize a person’s action and convey subtle criticism. Two devices that accomplished face attack were recycling an initial question and hypothetical questioning. Consider how they worked.

MC is suing for US$3000. She has claimed she was attacked by the defendant in a gas station, and as a result of the attack, she had a seizure that evening and had to get medical treatment. According to MC, when she was walking up to the counter the defendant bumped into her and grabbed her by the throat. The police were called when this happened, but charges were not pressed. Following a series of questions exploring why the attack happened and who instigated it, the following exchange occurs:

Excerpt 7

1 J: Did you know she was there when you went to the gas station?

2 MC: No sir.

3 J: So you just happened to run into her?

4 MC: This gas station is five houses away from our house.

5 J: I understand that. So you- you were there getting gas, and Ms. G.-

6 MC: I was there getting a pop.

7 J: Just by luck happened to be there when you were there?

8 MC: She was in there.

9 J: Did you know she was in there when you went to buy gas?

10 MC: No sir. (Case 35, MC: Plaintiff, J: Judge, Michigan)

In turns 3, 7 and 9 the judge reformulates his initial question ‘Did you know she was there when you went to the gas station?’ (line 1). The production of three more versions of the initial question is a question cascade, what Clayman and Heritage (2002) define as ‘different versions of what is ostensibly the same question’ (p. 757). By producing different versions of the same question, the judge marks his dissatisfaction with the plaintiff’s answer; re-asking the same question cues something is wrong with an initial answer. In addition, the formulations ‘you just happened’ (line 3) and ‘Just by luck happened’ (line 7) convey the speaker’s skepticism regarding MC’s avowal that she did not know the defendant would be at the gas station. The judge repeatedly marks the espoused coincidence of this event, thereby conveying disbelief. The last version of the initial question (line 9) recycles almost verbatim the first question. In sum, through recycling, reformulating and producing different versions of the same initial question, the judge conveys a negative evaluation of what MC is saying.

Another format for questioning that can convey evaluation is the hypothetical question. Hypothetical questions – asking someone to respond to a possible event that has not occurred – are common in exchanges between legal professionals both in law school classrooms (Mertz, 2007) and appellate court argument (Tracy, 2016). In other contexts this kind of question is less frequent. Although hypothetical questions may be used for play and personal connecting (e.g. ‘What would you do if you won the lottery?’), a common purpose is to problematize or criticize what someone has said. Such a use is illustrated in a judge’s questions to a plaintiff, LK, the office manager of a dental office who was suing the defendant for an unpaid dental bill. The patient had been given a choice of having her tooth removed or receiving a more expensive surgery that would preserve the tooth for a future root canal. The patient opted for the more expensive procedure, assuming she would be able to get support from dental insurance, which proved not to be true. The defendant did not dispute the money she owed but maintained that she could only pay US$25 a month, not the requested US$100 a week. In the following excerpt the judge poses multiple questions, including three hypothetical ones (lines 8–9, 11–12 and 15) in an effort to figure out how the plaintiff would have handled the patient if they had known she was unable to pay:

Excerpt 8

1 LK: We weren’t responsible for her.

2 J: No no, I mean health wise. I mean would [she have been okay?

3 LK: [It can go to her bloodstream and kill

4 her.

5 J: Ah, so this is- this is a procedure she needed to have.

6 LK: Yeah she had an abscess from the bottom of her tooth, this big. It could go to her

7 bloodstream and it could kill her.

8 J: Okay. So okay. So what if she came in and told you and said I have no insurance,

9 but I don’t have any money to pay you. This is my condition.

10 LK: I would have set her up on a payment plan like I did anyways.

11 J: And then even if she would have told you I can’t pay you. What would you have

12 done?

13 LK: Doctor would have op- uh no. Doctor would have extracted the tooth. We would

14 have extracted the tooth for $150. Put her on a payment plan for 150.

15 J: And uh even if she couldn’t pay you and told you that?

16 LK: If she couldn’t pay us for the extraction?

17 J: Right.

18 LK: On multiple occasions I’ve watched the doctor do extractions of patients and let

19 them walk out without paying. She did not choose that route. She choosed to do

20 the root canal to save the tooth so she could consist on- with the partial denture. (Case 31, LK: Plaintiff, J: Judge, Michigan)

Before asking the hypothetical questions, the judge establishes that the situation was life-threatening. In line 5, he uses the modal device ‘needed’ to highlight that care for the patient was necessary and required at the time. By using this term, the judge displays a strong expectation that the plaintiff had a moral responsibility and obligation to the defendant. Because the plaintiff knew that the abscess could ‘go to her bloodstream and kill her’ (lines 6 and 7), the judge implies the plaintiff could not have refused treatment regardless of the defendant’s ability to pay. The use of hypothetical questions further underscores the accountability of the plaintiff. When the judge asks ‘So what if she came in and told you and said I have no insurance, but I don’t have any money to pay you. This is my condition’ (lines 8 and 9), the hypothetical question asks the plaintiff to draw conclusions about an action that did not happen, but quite strongly suggests the morally right response. The judge’s second and third hypothetical questions (lines 11, 12 and 15) further convey his assessment that the dental office had an obligation to help regardless of payment.

Through a question’s type and its lexical clothing, speakers routinely convey their evaluation of what their interlocutor has said. In small claims disputes about everyday life events, judges’ questions reveal their evaluative, moral assessments, doing so in the same way that questions do this work elsewhere.

Problem 3: Enacting the setting as ‘informal’ and as ‘justice’

As previously noted, small claims court is a site of informal justice, and it varies considerably from court to court. One part of this variation involves the rules of conduct and procedures that are mentioned or enforced. In their national assessment, Ruhnka and Weller (1978) noted that there was significant variation in how much help small claims courts gave to preparing litigants.

In Colorado, the courts post on their website and send litigants written instructions about how to prepare evidence. In one of the two Colorado courts there is also elaborate video instruction available, and the court holds a face-to-face clinic once a month. There is assistance in the other court as well, but it is less elaborate. Some litigants take advantage of these prepping resources, but quite a few do not. For instance, litigants in Colorado are informed that they should bring three copies of their evidence (photographs, documents, etc.) – one for the judge, one for the other party and one for themselves. If the party is the plaintiff they are further instructed to number evidence pieces 1, 2 and 3, and if they are the defendant, to letter evidence A, B and C. In the Colorado court that furnishes extensive preparation help, a common occurrence early in the hearing involves the judge responding to litigants’ failures to follow instructions regarding evidence preparation. In a different Colorado court, Judge AL typically dealt with preparation failures by giving instructions at the start without marking those instructions as ones that the litigants should have known and followed before they arrived in court. Excerpts 9 and 10 illustrate two rebukes in the Colorado court with extensive training. Excerpt 9 is a mild rebuke and excerpt 10 a more pointed one:

Excerpt 9

1 J: … And Ms. uh M do you have a copy of your exhibits?

2 KM: Oh I do. I don’t have two copies of this one.

3 J: Do you have a copy for Ms. G?

4 KM: I have a copy for the court, I don’t have a copy for Ms. G.

5 J: Uh well did you read the order for exhibits? (Case 6, KM: Defendant, J: Judge, Colorado)

Excerpt 10

You were given an- an order that explained what you had to do with your exhibits. They have to be marked with numbers. You needed to bring a copy for the other side and a copy for me … And mark your exhibits. If you have more than one, mark ‘em with numbers. One, two, three, etcetera. We have one hour. Well, actually, we have less than an hour now … [parties talk among themselves about giving letters/numbers and it is not going smoothly] See how confusing this is gonna get? (Case 8, Colorado, Judge speaking across several turns involving explanation)

In the courts outside of Colorado, litigants might bring only one copy of a piece of evidence and the single copy would be shared with the judge without being marked as problematic conduct.

A second rule related to evidence concerns what is admissible. In criminal and civil trials, what exactly will count as evidence is often a matter of dispute between attorneys, with the judge ruling. In most small claims courts, evidence is simply given to the judge and there is little discussion among parties about the evidence’s ‘admissibility’.

In a few judges’ courts, the judge routinely asked parties if they had any objection to the evidence of the other party being admitted. Much of the time parties readily agreed, but at other times they did not. In excerpt 11, the plaintiff has filed a complaint asking for a little more than US$1500. The plaintiff had performed remodeling work at the defendant’s house but was not paid. The defendant, FG, claimed that the plaintiff did not finish the work in the agreed-upon time. The plaintiff notes that the initial understanding involved an agreement for the plaintiff to have lodging at the defendant’s house during visits to the city. After the defendant did not allow him to stay at his home, the plaintiff created a bill for his work. While testifying, the plaintiff notes that he has a recording of a telephone conversation that revealed the defendant’s hostile reaction when the plaintiff requested/demanded money. The judge then asks whether the defendant Mr FG has an objection to allowing the recording to come into the trial as evidence:

Excerpt 11

1 J: Okay. Do you have any objection of me considering that, Mr. G? In

2 evidence?

3 FG: Well I- the only objection that I would have was I was not informed that I was

4 being recorded. And he is correct when he says that I was frustrated. And I- I

5 guess you could characterize it as a rage but I would also add that I was set up on

6 that uh and extremely frustrated over what he was saying and that he was not

7 hearing what I said.

8 J: Okay.

9 FG: And- and so on- on that tape, the things that I talk about I- I would substantiate as

10 being true. The rage part is a little bit embarrassing, but that was, as I’m sure he

11 could testify to, knowing me 35 years and my son 31 years, that’s the first time

12 I’ve ever gone into a rage of that magnitude.

13 J: Okay, but you don’t have any other basis for objection beyond that?

14 FG: Well, my objection was that I was not party to knowing that I was being recorded

15 J: Well- in Colorado only one party has to know, so-

16 FG: Then- then I- then I don’t have a substantial- (Case 11, FG: Defendant, J: Judge, Colorado)

FG reports that he is embarrassed (line 10) by what he said and sees his talk as not typical of his own conduct (in 30 or 35 years this was the only time he had ‘gone into a rage of that magnitude’, line 12). The judge discounts this reason as legitimate (line 13) as well as his other reason (lack of knowledge about being taped, lines 4–14), although he treats this second reason as more adequate by virtue of not dismissing it as he did for the first reason by giving an explanation about Colorado’s law about taping (line 15). Why does the judge ask parties whether they have an objection to evidence being admitted? This move appears to be a politeness move to show respect to the litigants. And when the litigants proceed as expected – that is, accept the other submission of the party’s evidence – the request retains this function. However, when a litigant objects and the judge admits the evidence anyway, the request is exposed as pro forma. To be asked for one’s input when a judge knows what he or she is going to decide carries potential to be interpreted as disrespectful.

A somewhat different problem about evidence surfaced in the infrequent case of an attorney representing a party in small claims. Attorneys have little if any experience of appearing in small claims court since it is usually a place where disputants speak for themselves. When attorneys do appear, they tend to assume that the rules of other civil courts apply in small claims courts. In the trial referred to in excerpt 12, there was one plaintiff, two defendants and a lawyer for the defendants. The plaintiff, Mr S, is asking for US$5525 to fix the drywall and mold damage in his condo from a Home Owners Association (the defendants and lawyer). Judge AL began the hearing by having parties identify themselves. After the attorney introduces himself and the defendants and gives his registration number, the judge makes the following comment to Mr JH, the attorney for the defendants:

Excerpt 12

Thank you Mr. JH. Before we go any further, I’m having a sense of- of deja vu all over again. I feel as though, and I’ve just been comparing some other filings or pleadings from other cases, I feel as though I’ve presided over a matter between these parties or similar parties regarding a similar type of situation. (Case 24, Judge, Colorado)

The attorney notes that yes this happened, but it was different parties and different matters.

Then the judge gave a detailed explanation about the phases of the trial and the rights of parties and ends by noting, as he regularly did, that the rules of small claims court were ‘relaxed’. Somewhat later in the trial, after the judge had overruled one objection from the attorney regarding discovery of evidence procedures not being followed, the following exchange occurred:

Excerpt 13

1 JH: Eh- eh objection

2 J: To the court’s questioning?

3 JH: To- to the- the whole fact of the previous litigation. The resul- result, outcome and

4 any award that may have been, uh, issued at that time.

5 J: Well, I’m gonna take judicial notice of my own court file Mr. H number one.

6 Number two, the transcript has already been admitted. I’m going to find out. I was

7 hoping to expedite this process through some questioning. So

8 JH: Th- that’s fine, your Honor. I- our concern is that it’s a completely different issue,

9 and what happened in that litigation. I don’t believe has any relevance whatsoever

10 to this particular matter. So, wh- what outcome there may have been and what

11 award there may have been made in the plaintiff’s favor that matter, I don’t think

12 is- is- that’s all, your Honor. I objected to that fact.

13 J: Well, Mr. H. for the third time, I’ve [made a lengthy record about

14 JH: [I understand.

15 J: the Colorado rules of evidence and their applicability to a small claims

16 proceeding. They are relaxed. And to the extent that that information is

17 JH: Understood, your Honor.

18 J: relevant or not relevant, I’ll make that determination during my deliberations. (Case 24, JH: Defendant’s lawyer, J: Judge, Colorado)

What is particularly interesting in this excerpt is how the lawyer, JH, displays his knowledge about the law and his expectations of how to interact in the court. Because he thinks that the evidence is irrelevant (line 9), as it very well might be in other civil courts, he objects to having it considered. In response to the lawyer’s ‘objection’, the judge responds saying ‘for the third time, I’ve made a lengthy record about the Colorado rules of evidence and their applicability to a small claims proceeding’ (lines 13–16). Not only does he imply that the lawyer’s objection is inappropriate – the attorney has been told about the relaxed rules (line 16) - but the judge points to the lawyer’s inattentiveness or misunderstanding (‘for the third time’, line 13), therein threatening the attorney’s competence.

Conclusion

Judges in small claims court are required to enact justice in a setting where procedures and rules are not clearly spelled out; they must decide which procedures to state explicitly, which to enforce and just how they should run their courtrooms. The choices a judge makes affect how many cases he or she is able to hear, in how many of them the issue of appeal is raised or pursued and whether the judge will be seen as delivering procedural justice to disputants. These decisions are interlocking and complicated. In concluding, we flag five issues deserving careful thought.

First, there seems to be a tension between accomplishing procedural justice and the amount of time a judge regularly gives cases. Judge-directed questioning usually resolves cases more quickly than a trial-like adversarial style, but the question-asking style leads to more places where a judge could be seen to be treating parties differently or addressing them in a skeptical or dismissive fashion.

Second and related, judge questioning of litigants about these everyday disputes is difficult to do without threatening the reasonableness or goodness of the person giving an account. In trials with attorneys, it is widely recognized that attorneys use the ways they formulate their questions to impeach the credibility and character of witnesses (e.g. Matoesian, 2001; Penman, 1990; Rieke and Stutman, 1990). One place where judges question disputing parties is in oral argument in appeals courts. In appellate settings the judges are questioning attorneys rather than ordinary people, and the dispute has been made legal and technical in ways that minimize the moral implicativeness of questions (Tracy, 2016). This is not the case in small claims court. Questioning ordinary disputants about the troubles they have with others in their lives draws on everyday question formats that carry easy-to-read evaluative loadings of skepticism or other negative stances.

Third, how judges manage the right of litigants to appeal their decision seems a particularly problematic task. The different ways judges were observed to attend to this task – not introducing the right to appeal unless challenged, announcing litigants’ rights in the beginning and repeatedly, or seeking to sidestep the relevance of appeal through highly elaborated explanation and justification – all had downsides, although different. Repeatedly noting the right to appeal could increase the number of appeals. Providing extensive explanation throughout seemed a good way to minimize threats to litigants’ or the judge’s face, but it did co-occur with relatively lengthy trials. In essence, then, a better way to accomplish procedural justice was in tension with the court goal of limiting the amount of judicial time allocated to each case.

Fourth, informal justice by its very nature is particularistic, varying from case to case and judge to judge. Some of this variation results in person and situation-adapted justice that parties see as fair, responsive and procedurally just. At the same time, informal justice, as Abel (1982: 5) notes, has potential to become ‘a form of coercive control’. Put another way, the dangers of informal justice practices, such as small claims court, are a built-in risk to the interactional features that make it advantageous. Figuring out whether and how to modify this communication practice so that it is more procedurally just without introducing features that make it clunky and nonresponsive will be no small feat.

Finally, we would highlight a nonobvious, negative consequence of courts providing training. In seeking to provide training so litigants can have a reasonable experience in small claims court, courts can be seen to be working to equalize any party’s relative advantage. This seems a good thing to do. At the same time, however, the inclination to do one’s homework and come to a scene well prepared is not an impulse that is equally distributed among people. Those least likely to do this advance preparation, our observations suggest, are those persons often disadvantaged before the law (the least educated). The upshot of this difference is that training can lead to blaming. People who do not do well in small claims court are getting what they deserve: if they had prepared better, they might have changed the outcome.

This study looked carefully at the discourse of judges in small claims trials, describing judges’ discourse moves and arguing how and why their choices implicated the face of litigants. A small claims trial, occurring as it does in a courtroom with its wooden benches, tables for opposing sides, a lectern facing the judge and a witness box adjacent to the elevated seating given to the judge, is unavoidably face threatening for everyone except perhaps the most seasoned regulars. This situation-created, unavoidable type of face threat is enhanced or softened by how the judge manages the courtroom. Judges mitigate or upgrade face threat for litigants through their choices in how to accomplish tasks key to their courtroom role. It is these communicative actions, we have argued, that instantiate whether disputants would assess a court to have been dealt with in a procedurally just manner. Conveying (dis)respect and treating a persons (un)fairly are accomplished through communication.

Procedural justice is increasingly being used as a criterion for assessment of judges’ performance (Rottman and Tyler, 2014). In offering a portrait of how small claims judges’ discourse moves affected the face of litigants as they addressed competing criteria built into small claims court judging, we have shown how an abstract attitudinal criterion can be communicatively grounded. With additional study of small claims court exchanges, we expect to be able to weigh in regarding better and worse ways for judges in these courts to be procedurally fair while managing the multiple communication tasks that comprise their job.

Footnotes

Acknowledgements

An earlier version of this article was presented at the annual meeting of the International Communication Association, San Diego, CA, May 2017. Our thanks to Alena Vasilyeva and Bob Craig for their comments on a prior draft of this article.

Declaration of conflicting interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author(s) received no financial support for the research, authorship and/or publication of this article.

Notes

Author biographies

Karen Tracy is Professor of Communication at the University of Colorado Boulder, USA, where she teaches courses in discourse analysis, discourse in the justice system, and the practices and problems of meetings. She studies interactional problems built into institutional roles in legal and governance sites. She is the author of Discourse, Identities, and Social Change in the Marriage Equality Debates (Oxford University Press, 2016). She publishes regularly in language, discourse and communication journals.

Danielle Hodge is a third-year PhD candidate in the Department of Communication at the University of Colorado Boulder, USA. Her research focuses on identity, race and racism by putting discourse analytic approaches into conversation with African American studies and critical race theory. She received her BA in English from Chapman University and her MA in Communication and Rhetorical Studies from Syracuse University.

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